Brief Summary of Veterinary Malpractice
Rebecca F. Wisch (2003; updated 2010)
Imagine that you take your pet poodle Fido to the veterinarian. Fido is in serious distress from abdominal pain, which the veterinarian suspects is related to a serious condition. The veterinarian advises surgery to correct the condition; however, after Fido dies, you discover by autopsy that no surgery was ever performed. Or, imagine the veterinarian vaccinates your cat Fifi against your consent when she specifically knows Fifi to be allergic to vaccines. Are these cases of Veterinary Malpractice?
Until the mid-part of the last century, the term "malpractice" did not even apply to veterinarians (and still may not in some states where this profession is not listed under the malpractice statute). Recently, however, veterinarians have become subject to state malpractice actions. As the value of animals subject to malpractice actions increases from the traditional "market value" approach, it is expected that the number of malpractice claims will increase. (For further discussion of the valuation of companion animals, See Pet Damages Topic .)
Several factors must be proven under a traditional malpractice claim to recover damages for injury to an animal under a veterinarian’s care. First, the defendant must be under a duty of care toward the animal in question. This means that the veterinarian had accepted responsibility to treat the animal that the owner brought to his or her office. Second, the actions or inaction of the veterinarian must have fallen below the professional standard of care . Expert testimony from other veterinarians is often used to establish that the defendant-veterinarian’s conduct fell below the professional standard. This varies according to the state, but generally it means that the veterinarian did not act with reasonable skill, diligence, and attention as would ordinarily be expected of other veterinarians in the community. Third, this deviation from the standard of care must have been the cause or proximate cause of the animal’s injury. In the first example above, the veterinarian’s inaction with Fido caused the dog to die. Similarly, the veterinarian’s inoculation of Fifi also caused injury to her. With proximate cause a malpractice plaintiff must show that the veterinarian’s actions set in motion a train of events that brought about the injury to the animal without the intervention of any other independent source. Finally, the injury or harm resulted in damages to the plaintiff, meaning not just to the animal in question. While this may seem odd at first blush, it stems from the fact the animal injured is not a party to the lawsuit. Thus, the owner must show that he or she suffered some loss (monetary and infrequently on an emotional level). ( See , Pet Damages topic).
While experts are usually used to establish the veterinarian’s liability, sometimes the action of the veterinarian is so clearly wrong that an expert is not needed to show malpractice. A court may allow a jury (what can be termed "laypeople") to make this judgment based on the "common knowledge" of the community. This doctrine of law, called res ipsa loquitur , literally translated to mean "the thing that speaks for itself," is rare, but can occur in cases where a veterinarian operates on the wrong animal or leaves a needle in the neck of a horse that leads to serious injury.
Veterinarians may have several legal defenses to claims of malpractice. One of the most important procedural defenses is that of the statute of limitations . A statute of limitation is a state law that puts a limit on the amount of time a plaintiff has to file a lawsuit, usually from the time the injury occurred or when he or she discovered the injury. It varies from state to state and upon the type of action a plaintiff has initiated. With veterinary injury cases, the applicable statute of limitation may be based on claims for injury to personal property, as domestic animals are considered personal property of the owner (usually two to three years). For states that include veterinarians under the list of professions covered by malpractice statutes, they may be based upon statutes that set time limits for malpractice. Significantly, the manner in which a plaintiff asserts his or her claim (i.e., whether he or she claims common negligence or malpractice) may dictate the statute of limitations. This may then result in a claim being barred for a plaintiff if the veterinarian raises this defense. A veterinarian may also claim the defense of " Good Samaritan ," in which he or she has rendered care in an emergency situation. Here, veterinarians may only be liable for gross negligence.
Finally, as veterinarians are professional licensed by the states in which they practice, negligence or malpractice may result in the revocation of one’s license to practice veterinary medicine. As with other professionals, veterinarians are responsible for the maintenance of certain standards in order to have their licenses renewed. Improper actions, such as a failure to communicate with the pets’ owners, the failure to inform the owners of their pets’ deaths, or the failure to improperly administer treatment may result in disciplinary actions or suspension or revocation of a veterinary license .
Unfortunately, the biggest bar to a negligence lawsuit in veterinary malpractice cases is the lack of any significant monetary damages for the owner. But, for many owners, pets are more than mere animal companions and a legal action affords some assurance that the negligent veterinarian is held responsible. Owners should be aware of the necessary steps to take to properly preserve their claims.
Overview of Veterinary Malpractice
For the Owner - What to Do if You Suspect Malpractice
David S. Favre (2003)
What to do if you think there is a possibility of veterinarian malpractice:
- Do not leave the animal with the veterinarian in question - retrieve it as soon as possible unless it would cause new risk of harm to the animal.
- Take a picture of the animal and any affected area on the body.
- Have the animal taken for examination by another veterinarian who will be willing to testify as to what was discovered and give a professional opinion about whether or not malpractice has occurred. If the animal died, you need to find someone qualified to determine the cause of death (autopsy).
- Ask the office of the offending veterinarian for a copy of all the records (including x-rays and test results) that relate to the visit or visits in question.
- Write down everything that you can remember about the events at issue, in particular, conversations with the veterinarians concerning what needed to be done, what was explained as the treatment options, what permission was given and who was witness to the events.
- If an animal important to you dies, do not underestimate the need to go though a grieving process and recognize that filing a lawsuit will not be a satisfactory substitute for grieving.
- Remember that because of the limited amount of damages available for harm to an animal, a lawsuit may not make economic sense. (The lawyer may have to charge more in fees than can be recovered, even if you win). It is also possible for an animal owner to seek an informal resolution of a dispute with a veterinarian or to file a lawsuit in small claims court without the cost of a lawyer.